Experts: Health law likely to remain

A panel of legal experts convened by POLITICO Pro on Thursday predicted that the Supreme Court is likely to uphold the 2010 health care law.

Most said the law’s opponents’ argument that the individual mandate could lead to Congress being able to require people to buy all sorts of other goods or services doesn’t apply because health insurance is unique.

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"The government isn't standing here saying, 'We have the power to make you buy things you don't want to buy,'" said former acting solicitor general Neal Katyal. "The government's point is everyone consumes health care."

Walter Dellinger, who served as acting solicitor general under President Bill Clinton, said the court can easily rule that health care is unique because everyone needs it and they shift costs if they're uninsured. "If there is a single other product that meets that description, the government could make you buy that, but I don't know of one," Dellinger said.

Kevin Walsh, a former clerk for Justice Antonin Scalia, said the justices would only uphold the law "if they reach the merits." And he said that even though courts have upheld Congress's power in other cases to regulate commerce — within limits — this case is different because of the "unprecedented" nature of the individual mandate and "the absence of limits."

Thomas Goldstein, a founding partner of Goldstein and Russell and publisher of SCOTUSblog, said that if the court did strike down the mandate, it probably wouldn't be a narrow ruling.

“If you're going to do this, it's because you have serious reservations about government power, and the ruling would be broad enough to lead to other attacks on the regulatory state," he said. But that’s unlikely, he said, because "there's never been a signal with this group of justices that they're willing to seriously rethink the power of the regulatory state."

The panelists also walked through some other elements of the case and weighed in on what to watch for during the three days of oral arguments — and the justices' ears must be burning because everyone is talking about them and speculating about what they will do and when they will do it.

The panelists also debated whether the court could kick the can down the road, especially in a presidential year when the political ramifications of the law are huge for either presidential candidate.

There's "a fairly plausible argument on either side" that the Supreme Court could use the Anti-Injunction Act to avoid ruling on the individual mandate, Dellinger argued. It's not likely, he said, but if the justices decide it's too dangerous to rule in an election year, "The court might decide, 'You know, it might not be such a good idea for us to decide this in an election year — let me look at those arguments again'" on the Anti-Injunction Act. That would put a ruling off until after the mandate and its penalties go into effect.

Katyal said that the justices probably wouldn't put off ruling because “the country needs answers on this, and they’ve basically decided this by taking up the rest of the questions” on the individual mandate and the Medicaid expansion.

This article first appeared on POLITICO Pro at 10:35 a.m. on March 22, 2012.